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ECtHR judgments and their execution

ECtHR judgments

The ECtHR report from 1959 to 2017 states that the court in this period examined and decided on approximately 798,600 applications, and issued over 20,600 judgments. In as many as 84% of judgment, the court found at least one violation of ECHR or its Protocols. Since 1994, when Slovenia ratified ECHR and recognised the right to individual complaints, and until the end of 2017, there have been 9,129 applications filed against Slovenia for violation of human rights and fundamental freedoms ensured by ECHR and its Protocols. A large majority of applications are stopped in the application registration procedure due to their obvious inadmissibility. In this period, 366 judgments were issued against Slovenia. In as many as 329 judgment, ECtHR found that Slovenia violated ECHR and its Protocols. ECtHR found no violations of ECHR and its Protocols in only 19 judgments. Four case were resolved by friendly settlement or the case was removed from the list of cases to be considered, one case falls under so-called other judgments (due to just satisfaction, revision, previous objections and lack of jurisdiction).

The first judgment issues against Slovenia for violation of ECHR was judgment Majarič, issued on 8 February 2000 (ECtHR Judgment, application no. 28400/95).

Alleged violation of ECHR: The applicant, Ljubo Majarič, alleged a violation of Article 5(1) and Article 6(1) of ECHR due to unfair and unreasonably long criminal proceedings. The criminal proceedings against the applicant began on 6 December 1991, when he was charged with sexual assault of a minor and abduction of minors, and ended with the decision of the Constitutional Court on 1 December 1998.

ECtHR ruling: ECtHR considered the period from 28 June 1994, when Slovenia ratified ECHR. The commission determined the application acceptable in the part referring to the length of criminal proceedings. According to the applicant, the requirement “within reasonable time” was not met in his case. The Government of Slovenia claimed that the applicant himself contributed to the length of the proceedings, as he had failed to appear at certain hearings. Furthermore, the Government claimed that radical reforms of legal and economic relationships resulted in increased workload in the courts. The Government warned ECtHR that the reasonableness of the length of the proceedings should be assessed based on the special circumstances of the case, and considering the court’s case-law criteria. It is also necessary to especially consider the complexity of the case and the conduct of the applicant and authorities examining the case. The court considered the case quite complex due to additional charges against the applicant. However, this can not justify the length of the proceedings. ECtHR assessed that the delay in the proceedings can be mostly attributed to the conduct of domestic courts. Regarding the Government’s reference to the large workload of domestic courts, the ECtHR noted that Article 6(1) of the ECHR imposes on countries the obligation to organise their judicial system in such a way that allows courts to meet all their obligations. The commission unanimously agreed that a violation of Article 6(1) of ECHR occurred. The Government of Slovenia was ordered to pay to the applicant 300,000.00 Slovenian tolars for non-pecuniary damage.

Execution of ECtHR judgments

Countries have an international legal obligation to implement ECtHR judgments in their domestic legal orders. As ECtHR has no executive powers, execution depends on individual countries. Because of lack of political will or inability by certain governments, a large number of judgments remains unexecuted. After a decision by ECtHR that an ECHR violation occurred and a decision on the claim for just satisfaction, the Committee of Ministers must call on the relevant government to inform the Committee on already implemented measures or measures to be implemented as a result of the judgment. The Committee of Ministers examines if just satisfaction was fulfilled, if the government adopted individual measures for enforcing the judgment to cease the violation, and general measures to prevent similar violations. Decisions are made by the Committee of Ministers on the basis of resolutions, which can be final or temporary. If a government adopted all necessary measures to execute the judgment, or if a friendly settlement was reached, the Committee of Ministers adopts a final resolution. A temporary resolution is adopted in the execution supervision procedure, where the government is warned of deficient execution, with a proposal of appropriate measures. The Department for the Execution of Judgments prepared a Guide for the drafting of action plans and reports for the execution of judgments of ECtHR. This Guide provides help for national authorities in the drafting of these documents. The Guide also includes an explanation on the structure of action plans and reports. It also includes the deadlines that governments must adhere to when submitting documents to the Committee of Ministers. The Guide also presents examples of best practice.

Manner of execution of judgments

There are three ways or steps in the execution of ECtHR judgments. The first way is just satisfaction, whereby the Committee of Ministers checks if the government paid to the application the amount determined by ECtHR. The government must pay the amount with corresponding late-payment interest immediately, unconditionally, and in a single transfer. The second way is adoption of individual measures, which refers to the implementation of ECtHR requirements in concrete cases. Individual measures includes restoration of previous situation, payment of monetary compensation, reconsideration and reopening of completed criminal proceedings. The third way of execution of judgments is adoption of general measures. Governments must ensure that ECHR violations are eliminated and similar violations prevented. ECtHR can demand that a national court amend legal and constitutional provisions that cause ECHR violations, to change the established case law, and to improve public access to ECtHR judgments. The most extreme sanction for an ECHR violation and non-execution of judgments is the exclusion of the country from the Council of Europe.

Execution of judgments in Slovenia

The Courts Act states that in Slovenia, a decision of the ECtHR is directly executed by the competent court of the Republic of Slovenian if so stipulated by a ratified international treaty or a law governing court proceedings. Many governments have problems executing judgments. The countries with most problems are Bulgaria, Greece, Italy, Moldova, Poland, Romania, Russian Federation, Turkey and Ukraine. Problems in execution of judgments occur in these countries because the governments have reservation or oppose the execution of judgments. Slovenia also has problems with execution of judgments. One of the greatest problems in protecting human rights and fundamental freedoms in Slovenia is non-execution of ECtHR judgments. However, the number of judgments awaiting execution is decreasing. For example, at the end of 2014, 10,904 cases were awaiting execution of ECtHR judgments, of which 302 cases were linked to Slovenia. At the end of 2017, 7,584 cases were awaiting execution of ECtHR judgments, of which 50 were linked to Slovenia.

An example of a good or effective manner of execution is the ECtHR judgment execution in the case of Ališič and others v. Slovenia (ECtHR Judgment, application no. 60642/08). Slovenia adopted the Act Regulating the Enforcement of the European Court Of Human Rights Judgment in Case No. 60642/08 within the deadline. The Council of Europe adopted a decision in support of the Slovenian manner of execution of this judgment.

Alleged violation of ECHR: Three applicants, Emina Ališić, Aziz Sadžak and Sakib Šahdanović, filed an application with ECtHR on 30 July 2005. They alleged violation of Articles 13 and 14 of ECHR and Article 1 of Protocol no. 1 to the Convention. They wrote that they could not withdraw their old foreign currency deposits in the Ljubljanska banka branch in Sarajevo and in the Belgrade-based Investbanka branch in Tuzla. At the time of dissolution of the Socialist Federal Republic of Yugoslavia, foreign currency deposits of savers remained frozen. The successor states of the Socialist Federal Republic of Yugoslavia have, in various ways, assumed a guarantee for the foreign currency deposits of the former common state. Slovenia used the territorial principle and assumed a guarantee for old foreign currency deposits in all banks and bank branches in its territory, regardless of the bank’s head office and the nationality of savers.

ECtHR ruling: ECtHR issued a unanimous judgement that Slovenia and Serbia violated Article 1 of Protocol no. 1 to the Convention and Article 13 of ECHR. With 15 votes to two, ECtHR judged that other countries did not violate these articles. ECtHR issued a unanimous judgment that the application need not be examined from the perspective of Article 14 of ECHR in regard to Article 13 of ECHR and Article 1 of Protocol no. 1 to the Convention. Furthermore, ECtHR issued a unanimously judgment that, as Slovenian and Serbian governments failed to include current and all other application, who are in the same position, into repayment schemes for old foreign currency deposits, this represents a systemic problem. With 16 votes to one, ECtHR issued a judgment that Slovenia, under the supervision of the Committee of Ministers, must adopt all necessary measures within a year and half, including legislative amendments, to ensure that all applicants and any other persons in the same situation will receive their old foreign currency deposits under the same conditions as those who held such deposits in domestic branches of Slovenian banks. ECtHR also issued a unanimous judgment to postpone hearings of any similar cases filed against Slovenia and Serbia. In three months, Slovenia had to pay Emina Ališić and Aziz Sadžak for non-pecuniary damage EUR4,000.00 each.

After the judgment: In 2015, Slovenia adopted a special law for the execution of the judgment, regulating the conditions and procedure for the enforcement of rights of these persons. The Succession Fund of the Republic of Slovenia was also established. In March 2018, the Committee of Ministers of the Council of Europe concluded the supervision of judgment execution. In its decision, it found that Slovenia adopted all necessary measures for complete execution of the judgment. By the execution of the judgment, Slovenia managed to reduce to the greatest degree possible the number of open complaints against Slovenian before ECtHR.

Source: Slovenija pred Evropskim sodiščem za človekove pravice [Slovenia before the European Court of Human Rights] (master’s thesis), 2015, Maja Gogala

2019-06-19T10:13:30+02:00
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